Allahabad High Court
Raj Kumar Srivastava vs State Of U.P. And Ors. on 22 December, 1995
Equivalent citations: (1996)ILLJ1054ALL
Author: Shitla Prasad Srivastava
Bench: Shitla Prasad Srivastava
JUDGMENT Shitla Prasad Srivastava, J.
1. This writ petition has been filed by the petitioner under Article 226 of the Constitution of India for quashing the award of the Labour Court dated June 18, 1991.
2. The facts giving rise to the present writ petition in brief are that petitioner was engaged as apprentice to undergo apprenticeship training in Indian Fertilizer Corporation Limited, Phulpur, District Allahabad under the provisions of Section 4 of the Apprenticeship Act, 1961. The contract of Apprenticeship was executed and signed by the petitioner and the employer as provided under Section 4 of the Act for two years training . It is alleged by the petitioner that the first contract was signed by one Sri N.P. Sinha on behalf of the respondents. Subsequently after the transfer of Sri N.P. Sinha that contract was canceled and the second contract was written and signed by Sri R.R. Rawat, who had succeeded in place of Sri N.P. Sinha as Manager Personnel and Administration (I) in the concern of the respondent No. 3. It is alleged that although this document was signed subsequently but it was ante dated and the same date was mentioned in the contract on whcih it was signed by Sri N.P. Sinha as such it was an ante-dated agreement. Therefore, this agreement was illegal and since there was not valid and legal contract between the parties, the petitioner is not bound by the terms of the agreement and since he has worked for two years, his services cannot be terminated without complying with the provisions of the Industrial Disputes Act and without payment of retrenchment compensation as provided under Section 6-N of the Act. The petitioner filed a claim petition before the appropriate authority which was referred under Section 4-K of the Act to the Labour Court for adjudication before the Labour Court. The contention of the petitioner before the Labour Court was that since no notice or pay or compensation for retrenchment was given to the petitioner as contemplated under Section 6-N of the U.P. Industrial Disputes Act, 1947 and Juniors to the petitioner are working on the post and Petitioner's services were terminated without any complaint against him and without giving any opportunity of hearing, therefore, the termination of the services of the petitioner after two years is illegal.
3. A counter affidavit has been filed on behalf of the respondent in which it has been stated that the petitioner was never appointed as Assistant Technician by the respondent No. 3 and that the respondent No. 3 was originally constituted under Multi Unit Co-operative Societies Act and was subsequently on the enactment of Multi-State Co-operative Societies Act, 1984 it has been deemed to be constituted under the Act of 1984. Sri N.P. Sinha executed apprenticeship contract with the petitioner not under any confusion, but subsequently there was some technical defect in the contract, therefore, Sri R.R. Rawat who succeeded Sri N.P. Sinha after his transfer signed the second contract which was sent for registration to the Assistant Apprenticeship Advisor as provided under Section 4-A of the Act. Therefore, the contract was not illegal and since the apprenticeship training of the petitioner has already commenced from July 14, 1988 in the revised contract the same date was given as the date of the contract and it cannot be said to be illegal, or ante-dated contract.
4. In the objection filed before the Labour Court it has also been stated by the respondent No. 3 that the petitioner was engaged only for two years i.efromJuly 14, 1981 to July 13, 1983 as apprentice and, therefore, he was not a workman as defined under the U.P. Industrial Disputes Act. It is further stated that under Section 18 of the Apprenticeship Act the apprentices are only trainees and not a worker and the provisions of any labour law shall not apply to such apprentices, therefore, the petitioner cannot be a workman as defined under the U.P.Industrial Disputes Act. It is stated that the petitioner was only engaged as apprentice on July 14, 1981 as per provisions of Apprenticeship Act and the contract was registered before the Apprenticeship Adviser, which was only for two years' therefore, after completion of two years training the petitioner had no right to continue either as a workman or as an employee or as a trainee in the department and the provisions of U.P. Industrial Disputes Act, 1947 are not applicable and he is not entitled for retrenchment notice compensation and pay etc. as provided under Section 6-N of the U.P. Industrial Disputes Act.
5. The Labour Court held that the petitioner was not a workman in the concern of respondent No. 3 nor he was Assistant Technician, nor appointed on the post of Assistant Technician as such no dispute could have been referred to the labour Court as he was not a workman, therefore, there is no question of termination of the services of the petitioner on July 13, 1983 and the petitioner is not entitled to any relief.
6. After hearing the learned counsel for the parties two points nave emerged for decision by this Court. The first point is that what is the effect of the contract, which was arrived at between the parties under the provisions of Apprenticeship Act and secondly what is the legal right of the petitioner after expiry of two years (the fixed term in the contract) as apprentice.
7. It has been urged by the learned counsel for the petitioner that no doubt the petitioner was appointed on the basis of the contract as provided under Section 4 of the Apprenticeship Act and it was signed by the parties on July 14, 1981 and the petitioner started his training from that day, but since this contract was subsequently cancelled by the respondent No. 3 and a fresh contract was executed between the parties which was ante- dated, it was registered with the Apprenticeship Adviser as provided under Section 4 of the Act, these two contracts are illegal as the first one was cancelled and the second on was ante- dated, therefore, there was no contract between the parties, that the petitioner will continue only for two years as apprentice upto July 13, 1983. His contention is that on July 13, 1983 when period of two years expired the petitioner' s services could not have been terminated as he was workman till date and in the absence of any legal contract as provided under the Apprenticeship Act he was entitled to the benefits of Section 6-N of the U.P. Industrial Disputes Act. The second contention of the petitioner is that as the juniors have been retained, who were also placed under the same circumstances as apprentices, therefore, the removal of the petitioner though there are still jobs with the respondent is illegal.
8. The petitioner has further contended that though initially the appointment was for a fixed term but if there is a vacancy in the concern of the respondent No. 3 then the break of his service is illegal and if the petitioner has completed more than 240 days in calendar year, which admittedly he had, his service cannot be terminated without complying with the provisions of Section 6-N of the Act. Petitioner's counsel has placed reliance on State Bank of India v. Sundara Mony (1976-I-LLJ-478). In this case the respondent was appointed by the State Bank of India, between July 31, 1973 and August 29, 1973. The first appointment of the petitioner in this case was for nine days only. The Court held that breakdown of Section 2(oo) unmistakably expends the semantics of retrenchment, the termination for any reason whatsoever are the key words. Whatever the reason every termination spells retrenchment.
9. The termination takes place where the terms expire either by active steps of Master or running out of the stipulated term to protect the weak against the strong. The policy of pronouncing the definition has been effectuated the termination, embraces not merely the act of termination by the employers but the effect of the termination howsoever prejudice may be a hard case but we can visualise the abuse by the employers by verbal devices circumbending the armour of Section 25 and 2(oo) without speculating on the possibilities. We may agree that the retirement is no longer terra-incognite but area covered by an expansive definition.
10. On the basis of the aforesaid decision it has been urged by the learned counsel for the petitioner that even if the appointment was only for two years, while terminating his services, the necessary notice, as provided under Section 6-N of the Act was necessary, therefore, the termination of the services of the petitioner after two years is illegal. The petitioner has also placed reliance on Hussainbhai v. The Alath Factory Tozhilali Union and Ors. (1978-II-LLJ-397). at page 398 "Where a worker or group of workers labours to produce goods or services for the business of another, that other is, in fact, the employer. He has economic control over the workers subsistence, skill, and continued employment. If he, for any reason chokes off, the worker is, virtually, laid off. The presence of intermediate contractors with whom alone the workers have immediate or direct relationship ex-contract is of no consequence when, on lifting the veil or looking at the conspectus of factors governing employment though draped in different perfect paper arrangement, that the real employer is the Management not the immediate contractor."
11. On the basis of this decision it has been urged by the learned counsel for the petitioner that though there was some contract but since the relationship of master and servant was initiated from the date when the petitioner started his work, he becomes workman and the respondent was employer, therefore, even after expiry of two years, he could not be restrained from working unless the provisions of Section 6-N of the U.P. Industrial Disputes Act are applied and he is given notice etc.
12. The next decision which has been relied on by learned counsel for the petitioner is reported in U.P. State Road Transport Corporation and Anr. v. U.P. Parivahan, Nigam, Shishukhs Berozgar Sangh and Ors. (1995-II-LLJ-854). According to the petitioner that even if the petitioner was apprentice trainee on the basis of model contract form and if the post is still vacant and available in the department, the petitioner was entitled for regularisation of his services and reinstatement.
13. Other decision relied on behalf of the petitioner is Co- operative Central bank Ltd. and Ors. v. Additional Industrial Tribunal, Andhra Pradesh and Ors. 1969 (19) FLR 56 (SC). The contention of learned counsel for the petitioner is that even if the appointment was for a fixed term i.e. for two years, the Supreme Court has taken a view that the jurisdiction which is granted to Industrial Tribunal by the Industrial Disputes Act is not the jurisdiction of merely administering the existing laws and enforcing existing contracts. Industrial Tribunals have the right even to vary contracts of service between the employer arid the employees which jurisdiction can never be exercised by a civil Court. It has been urged on the basis of this decision that even for argument sake, it is accepted that there was a contract for two years under the provision of Apprentices Act 1961, the industrial Tribunal was not bound by the terms of agreement and it has jurisdiction to take into consideration that after expiry of the aforesaid period, the petitioner continues to remain a workman and his services could not have been terminated without observing the provisions of U.P. Industrial Disputes Act. His second contention was that as has been said earlier since both the contracts were illegal, therefore the Tribunal has jurisdiction to take into consideration the fact that the petitioner had worked for more than 240 days and as such he was entitled to continue in service and further that his series couldn't have been terminated without observing the procedure of Section 6-N of the Act
14. Reliance has also been placed by the petitioner on a judgment delivered by this Court which is reported in Shailendra Nath Shukla and Ors. v. The Vice Chancellor, Allahabad University and Ors. 1986 (53) FLR 687 (Alld.) where the provisions of Section 2(oo) of the Act was also considered and it has been urged that this Court has held:
"In a society with so wide gap where bargaining power of employee is nil who is exposed to exploitation the nature of employment cannot be judged on the letter issued by the employer but on the nature of duties performed. For instance workers employed for doing a particular job which may be for more than 240 days can be said to be covered by this clause as their engagement comes to an end because of completion of work. Similarly a workman employed for a stipulated period or completion of work whichever may be earlier may be covered in this clause. But if contractual employment is resorted to as a mechanism to frustrate the claim of employee to become regular or permanent against a job which continues or the nature of duties are such that the colour of contractual engagement is given to take it out from the principal clause then such agreements shall have to be tested on anvil of fairness and bonafide."
15. It is contended on the basis of this decision that where a contract was for two years and that had come to an end by cancellation and executing a second contract with retrospective effect, there was no valid contract between the parties, therefore, this so called contract was only with a view to frustrate the law of retrenchment and the provisions of the Act and such contract will not operate as estoppel against the petitioner and he is entitled for the benefit of the provisions of Industrial Disputes Act.
16. The petitioner has also placed reliance on a decision reported in Prabhu Narain Pal and Anr. v. Secretary-cum-General Manager, Central Co-operative Bank Ltd. Jhansi and Ors., (1995-I-LLJ-586). His contention is that if an employee works for 240 days during one calendar year, certain benefits accrue to him and cannot be wiped of on the plea that the petitioner was only appointed for two years as in the case of Prabhu Narain Rai also the appointment was only made for 89 days.
17. Learned counsel for the respondents has urged that as the petitioner had applied for engagement as apprenticeship trainee in designated trade under Section 4 of the Apprentices Act, 1961 which lays down that "no person shall be engaged as an apprentice to undergo apprenticeship training in designated trade unless such person has, if he is a minor, his guardian, has entered into a contract of apprenticeship with the employer." Therefore, engagement of the petitioner was under Section 4 for which he had applied for and he cannot be permitted to say that his engagement was otherwise than on the basis of the contract. His further contention was that as provided under Section 4, Sub-clause (2) of the Apprentices Act, the apprenticeship training shall be deemed to have commenced on the date on which the contract of apprenticeship has been entered into under Sub-section (1) which contains such terms and conditions as may be agreed by the parties to the contract. The petitioner had started his training from the date of entering into a contract at the initial stage. Subsequent agreement which was again written due to some technicality will not give any right to the petitioner. Engagement was depended on this contract, therefore, provisions of U.P. Industrial Disputes Act as claimed by the petitioner are not applicable to him because the petitioner had applied for engagement in a particular Act as trainee and he was bound by the terms and conditions of the contract and further since his initial engagement was under apprentices Act, 1961, the provisions of that Act would be applicable and he cannot be treated to be a general candidate and can never be termed as workman. For this purpose, leaned counsel for the respondents has placed reliance on a case reported in the Employees State Insurance Corporation and Anr. v. The Tata Engineering & Locomotive Co. Ltd and Ors. (1976-I-LLJ-81) (SC) and has urged that the apprentices are only trainees and not workmen as has been mentioned in Section 18 of the Act itself. The relevant section is quoted hereinbelow:-
"Section 18 Apprentices are trainees and not workmen:
(a) every apprentice undergoing apprenticeship training in a designated trade in an establishment shall be a trainee and not a worker and
(b) the provisions of any law with respect to labour shall not apply to or in relation to such apprentice."
He has also placed reliance on a decision reported in GEC of India Ltd., Naini, Allahabad v. Prakash Narain Pandey 1991 (62) FLR 554. On the basis of this decision it has been urged that the fact that certain payment is made during apprenticeship and that he has to be under certain rules of discipline, he shall not be treated to be a regular employee. The second limb of the argument of learned counsel for the respondents was that under Section 20 of the Apprentices Act, 1961 there is provision of settlement of disputes in case of any disagreement or dispute between an employer and an apprentice arising out of the contract of apprenticeship , shall be referred to the .Apprenticeship Adviser for decision. The relevant provisions are quoted here as below:
"Settlement of disputes -
(1) Any disagreement or dispute between an employer and an apprentice arising out of the contract of apprenticeship shall be referred to the Apprenticeship Adviser for decision.
(2) Any person aggrieved by the decision of the Apprenticeship Adviser under Sub-section (1), may within thirty days from date of communication to him of such decision, prefer an appeal against the decision to the Apprenticeship Council appointed for the purpose.
(3) The decision of the Committee under Sub-section (2) and subject only to such decision, the decision of the Apprenticeship Adviser under Sub-section (1) shall be final."
The contention of learned counsel for the respondent is that if the petitioner was asked to sign the second agreement after cancellation of first one as has been alleged by him, then he should have raised the dispute as to whether this second agreement will be legal and binding on the parties and should have prayed that such dispute should have got referred to the Apprenticeship Adviser who was to register such contract as provided under Sub-section (4) of Section 4 and as per Sub-section (2) of Section 20 he has also right to file an appeal against the decision to the Apprenticeship Council and the decision of the Committee Under Section 2 was final under the Act and since no such steps were taken by the petitioner, the petitioner has no right to file the present writ petition and the forum chosen by him was also not proper but now as the finding has been given by the Tribunal on consideration of entire facts and law that the petitioner was not a workman nor he was appointed as Assistant Technician, therefore, the dispute could not have been referred to the Tribunal and there is no question of any retrenchment or termination of the services of the petitioner on July 13, 1983.
18. Having heard learned counsel for the petitioner at length and after considering the fact, circumstances and legal position of the case, I am of the view that since the petitioner had himself applied for engagement under provisions of Apprentices Act, 1961 and had signed both the agreements the provisions of Apprentices Act were fully applicable to the facts and circumstances of the present case and the petitioner was not a workman as there is no specific provision under Section 18 of the Apprentices Act, 1961 and further that as the petitioner had remedy available to him under Section 20 of the Act as he was asked to sign the second agreement and should have prayed for reference as provided Under Section 20, the petitioner was not a workman as defined under the provisions of U.P. Industrial Disputes Act and he was not entitled to any benefit of the U.P. Industrial Disputes Act. The Award delivered by respondent No. 2 in Adjudication Case No. 77 of 1989 dated June 18, 1991, displayed on the Notice Board on April 7, 1992 does not suffer from any error in law and the writ petition fails.
19. The writ petition is dismissed. There will be no orders as to costs.